SUCF Construction Agreement - State University Of New York
State University Construction Fund AGREEMENT This Agreement made as of the day of X, 20XX, by and between the State University Construction Fund, whose address is The H. Carl McCall SUNY Building, 353 Broadway, Albany, New York 12246, hereinafter referred to as the "Fund", and Article I General Provisions Section 1.01 Where the following words and expressions are used in the Contract Documents it is understood that they have the meaning set forth as follows: Allowance Any and all work and materials which may be required of the Contractor in performing work set forth under one or more allowances to this Contract shall be Work, as defined herein, which shall be performed in accordance with the base schedule for the performance of the Contractor’s Work. Contractor shall not be entitled to an extension of time for the performance of an allowance or all allowances. Consultant The Architect or Engineer named in the Notice to Bidders or such other person or firm designated by the Fund to provide general administration of the Contract and inspection of the work. hereinafter referred to as the "Contractor". WITNESSETH: The parties hereto agree that the Contractor shall (a) furnish and perform all work of every kind required and all other things necessary to complete in the most substantial and workmanlike manner the construction of in strict accordance with the Contract Documents; (b) complete all work necessary for substantial completion by or within , starting after receipt of the Notice to Proceed, [INSTRUCTIONS: Identify substantial completion date above utilizing only one method.] or within the time to which such completion may have been extended in accordance with the Contract Documents; (c) in the event it fails to substantially complete all the work on time, pay to the Fund liquidated damages in the amount of for each calendar day of delay of substantially completing all the work; and (d) do everything required by the Contract; subject, however, to the terms, provisions and conditions listed hereinafter. Page A-1 Definitions Bidding Notice to Bidders, Information for Documents Bidders and Proposals Bonds Performance Bond and Labor and Material Bond Delay For purposes of this document and as used herein and in any other contract documents between the Contractor and the Fund the word “delay” shall be interpreted broadly and shall include by way of example only and not by way of limitation: delay, disruption, interference, inefficiencies, impedance, hindrance, acceleration, resequencing, schedule impacts, lack of timeliness by the Fund and/or Consultant, and lack of coordination, cumulative impact of multiple change orders, delay and other impacts. Contract or The Agreement, Bonds, Specifications, Contract Project Manual, Drawings, Addenda Version August 2023
Documents issued prior to the opening of bids and Change Orders issued after award of the Contract. Fund or Owner State University Construction Fund Notice of Award Letter of Intent Project The facility or facilities to be constructed including all usual, appropriate and necessary attendant work shown on, described in or mentioned in the Contract. Site The area within the Contract limit lines, as shown on the Drawings, and all other areas upon which the Contractor is to perform work. Substantial Substantial Completion is the completion Completion of Work so that the Project can be fully occupied and used for the purposes for which it is intended. Substantial Completion includes: (1) completion of all work required for the issuance of a code compliance certificate, or a temporary approval for occupancy, completed in a manner that includes no uncorrected deficiency or material violation of the Building Code of New York State within the area or work for which the certificate is to be issued; (2) completion of all building systems and functional testing of said systems (other than tests that cannot be performed due to the seasonal environmental conditions in effect at the time of completion); (3) acceptance and approval of the Operating Instructions and Manuals and Training of Campus Personnel; and (4) the sum of values determined for Punch List work at the time of Substantial Completion shall not exceed one (1) percent of the amount of the Contract consideration unless otherwise agreed to by the Fund. Work The using, performing, installing, furnishing and supplying of all materials, equipment, labor, services and incidentals necessary or proper for or incidental to the successful completion of the Project and the carrying out of all Page A-2 duties and obligations imposed upon the Contractor by the Contract. Section 1.02 Captions The titles or captions of Articles and Sections of the Contract are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof or of the Contract or in any way affect the Contract. Section 1.03 Nomenclature Materials, equipment or other work described in words and abbreviations which have a well-known, technical or trade meaning shall be interpreted as having such meaning in connection with the Contract. Section 1.04 Entire Agreement The Contract constitutes the entire agreement between the parties hereto and no statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained herein shall be binding or valid and the Contract shall not be changed, modified, or altered in any manner except by an instrument in writing executed by the parties hereto. Section 1.05 Successors and Assigns The Contract shall bind the successors, assigns and representatives of the parties hereto. Section 1.06 Accuracy and Completeness of Contract Documents (1) The Contract Documents are complementary and what is called for by any one shall be as binding as if called for by all. The intention of the Documents is to include all materials, plant, equipment, tools, skill and labor of every kind necessary for the proper execution of the work and also those things which may be reasonably inferable from the Contract Documents as being necessary to produce the intended results. (2) The Contract Documents contemplate a finished piece of work of such character and quality as is reasonably inferable from them. The Contractor acknowledges that the Contract consideration includes sufficient money allowance to make its work complete and operational and in compliance with good practice and it agrees that inadvertent minor discrepancies or omissions or the failure to show details or to repeat on any part of the Contract Documents the figures or notes given on another shall Version August 2023
not be the cause for additional charges or claims. In case of a conflict between any part or parts of the Contract Documents with any other part or parts thereof, as contrasted to an omission or failure to show details or to repeat on any part of the Contract Documents the figures or notes given on another part thereof, the following shall be given preference, in the order hereinafter set forth, to determine what work the Contractor is required to perform: (a) Addenda (later dates to take preference over earlier dates); (b) Amendments to Agreement; (c) Agreement; (d) Specifications; (e) Schedules; (f) Large scale detail Drawings (detail drawings having a scale of 3/4" and over); (g) Large scale plan and section Drawings (plan and section drawings having a scale equal to or larger than that used for the basic floor or site plan, as the case may be); (h) Small scale detail Drawings (detail drawings having a scale of less than 3/4"); and (i) Small scale plan and section Drawings (plan and section drawings having a scale less than that used for the basic floor or site plan, as the case may be). In the event of such a conflict between or among parts of the Contract Documents that are entitled to equal preference, the more expensive way of doing the work, the better quality or greater quantity of material shall govern unless the Fund otherwise directs. Section 1.07 Organization of Contract Documents The Specifications and Drawings are generally divided into trade sections for the purpose of ready references, but such division is arbitrary and such sections shall not be construed as the prescription by the Consultant or the Fund of the limits of the work of any subcontractor or as a determination of the class of labor or trade necessary for the fabrication, erection, installation or finishing of the work required. The Contractor will be permitted to allot the work of subcontractors at its own discretion regardless of the grouping of the Specifications and Drawings. It shall be the Contractor's responsibility to settle definitively with each subcontractor the portions of the work which the latter will be required to do. The Fund and the Consultant assume no responsibility whatever for any jurisdiction claimed by any of the trades involved in the work. Section 1.08 Furnishing of Contract Documents The Fund shall establish the format for the Contract Documents (hard copy and/or electronic media) at the start of the Project. The Contractor shall be furnished, free of charge, with two (2) copies of the Specifications and Drawings in the selected format(s). Any other copies of the Specifications and Drawings which the Page A-3 Contractor may desire can be obtained at the Contractors expense. Section 1.09 Examination of Contract Documents and Site By executing the Contract, the Contractor agrees that it has carefully examined the Contract Documents together with the site of the proposed work as well as its surrounding territory; that it is fully informed regarding all the conditions affecting the work to be done and the labor and materials to be furnished for the completion of the Contract; and that its information has been acquired by personal investigation and research and not in the estimates and records of the Fund. Section 1.10 Invalid Provisions If any term or provision of the Contract Documents or the application thereof to any person, firm or corporation or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the Contract Documents, or the application of such terms or provisions to persons, firms or corporations or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of the Contract Documents shall be valid and be enforced to the fullest extent permitted by law. Section 1.11 No Collusion or Fraud The Contractor hereby agrees that the Contract was secured without collusion or fraud and that neither any officer nor any employee of the Fund has or shall have a financial interest in the performance of the Contract or in the supplies, work or business to which it relates, or in any portion of the profits thereof. Section 1.12 Notices (1) All notices permitted or required hereunder shall be in writing and shall be transmitted either: a. via certified or registered United States mail, return receipt requested; b. by personal delivery; c. by expedited delivery service; or d. by email if actually received by the Fund. Contractor bears the burden of service by email and receipt of email by the Fund. Such notices shall be addressed as follows or to such different addresses as the parties may from time to time designate: Version August 2023
The State University Construction Fund Name: Title: Project Coordinator The H. Carl McCall SUNY Building 353 Broadway, Albany, NY 12246 Telephone Number: E-mail address: work shall in no way supersede or dilute the Contractor's obligation to perform the work in conformance with all Contract requirements, but it is empowered by the Fund to act on its behalf with respect to the proper execution of the work and to give instructions and/or direction when necessary to require such corrective measures as may be necessary, in its professional opinion, to insure the proper execution of the Contract or to otherwise protect the Fund's interest. Contractor Company Name: Designated Contact Name: Contact Title: Project Manager Address: Telephone Number: E-mail Address: (2) Any such notice shall be deemed to have been given either at the time of personal delivery or actual receipt by the Fund, or in the case of email, upon receipt by the Fund. (3) The parties may, from time to time, specify any new or different address in the United States as their address for purpose of receiving notice under this Agreement by giving fifteen (15) days written notice to the other party sent in accordance herewith. The parties agree to mutually designate individuals as their respective representatives for the purposes of receiving notices under this Agreement. Additional individuals may be designated in writing by the parties for purposes of implementation and administration/billing, resolving issues and problems and/or for dispute resolution. Section 1.13 Singular-Plural; Male-Female As used in the Contract Documents, the singular of any word or designation, whenever necessary or appropriate, shall include the plural and vice versa, and the masculine gender shall include the female and neutral genders and vice versa. Article II Contract Administration and Conduct Section 2.01 Consultant's Status (1) The Consultant, as the Fund's representative, shall provide general administration of the Contract and inspection of the work. The Consultant will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, and it will not be responsible for the Contractor's failure to carry out the work in accordance with the Contract Documents. The Consultant's duties, services and Page A-4 (2) The Consultant shall have the authority to stop the work or to require and/or direct the prompt execution thereof whenever such action may be necessary, in its professional opinion, to insure the proper execution of the Contract or to otherwise protect the interests of the Fund. (3) Except as otherwise provided in the Contract, the Consultant shall determine the amount, quality, acceptability, fitness and progress of the work covered by the Contract and shall decide all questions of fact which may arise in relation to the interpretation of the plans and Specifications, the performance of the work and the fulfillment by the Contractor of the provisions of the Contract. The Consultant shall in the first instance be the interpreter of the provisions of the Contract and the judge of its performance and it shall use its power under the Contract to enforce its faithful performance. Section 2.02 Finality of Decisions (1) Any decision or determination of the Consultant under the provisions of the Contract shall be final, conclusive and binding on the Contractor unless the Contractor shall, within ten (10) working days after such decision, make and deliver to the Fund a verified written statement of its contention that the decision of the Consultant is contrary to a provision of the Contract. The Fund shall thereupon determine the validity of the Contractor's contention. Pending decision by the Fund, the Contractor shall proceed in accordance with the Consultant's decision. (2) Wherever it is provided in the Contract Documents that an application must be made to the Fund and/or determination made by the Fund, the Fund's decision on such application and/or its determination under the Contract Documents shall be final, conclusive and binding upon the Contractor unless the Contractor, within ten (10) working days after receiving notice of the Fund's decision or determination, files a written statement with the Fund and the Consultant that it reserves its rights in connection with the matters covered by said decision Version August 2023
or determination and after a court of competent jurisdiction determines the Fund’s said decision or determination to be fraudulent, capricious, arbitrary or so grossly erroneous as necessarily to imply bad faith, in an action brought in accordance with Section 4.24. Section 2.03 Claims and Disputes (1) If the Contractor claims (i) that any work it has been ordered to do is extra work or (ii) that it has performed or is going to perform extra work or (iii) that any action or omission of the Fund or the Consultant is contrary to the terms and provisions of the Contract, it shall: a. Promptly comply with such order; b. Notwithstanding the provisions of Section 1.12 of the Agreement and any other provisions of the Contract documents to the contrary, file with the Fund and the Consultant, within five (5) working days after being ordered to perform the work claimed by it to be extra work or within five (5) working days after commencing performance of the extra work, whichever date shall be the earlier, or within five (5) working days after the said action or omission on the part of the Fund or the Consultant occurred, a written notice of the basis of its claim and request a determination thereof, c. Notwithstanding the provisions of Section 1.12 of the Agreement and any other provisions of the Contract documents to the contrary, file with the Fund and the Consultant, within thirty (30) calendar days after said alleged extra work was required to be performed or said alleged extra work was commenced, whichever date shall be the earlier, or said alleged action or omission by the Fund or the Consultant occurred, a verified detailed statement, with documentary evidence, of the items and basis of its claim, including an initial and updated detailed Time Progress Schedule, d. Produce for the Fund's examination, upon notice from the Fund, such information and documentation as directed by the Fund, which shall include but not be limited to job cost reports and all estimates and documentation used to develop the Bid Proposal, all its books of account, bills, invoices, payrolls, subcontracts, time books, progress records, daily reports, bank deposit books, bank statements, checkbooks and cancelled checks, showing all of its actions and transactions in connection with or relating to or arising by reason of its claim, and submit persons in its employment and in its subcontractors' Page A-5 employment for examination under oath by any person designated by the Fund to investigate any claims made against the Fund under the Contract, such examination to be made at the offices of the Contractor; and e. Proceed diligently, pending and subsequent to the determination of the Fund with respect to any such disputed matter, with the performance of the Contract and in accordance with all instructions of the Fund and the Consultant. (2) The Contractor's failure to comply with any or all parts of subdivision b, c and d of paragraph (1) of this Section shall be deemed to be: (i) a conclusive and binding determination on its part that said order, work, action or omission does not involve extra work and is not contrary to the terms and provisions of the Contract; and (ii) a waiver by the Contractor of all claims for additional compensation or damages as a result of said order, work, action or omission. The provisions of subdivision b, c and d of paragraph (1) of this Section are for the purpose of enabling the Fund to avoid waste of public funds by affording it promptly the opportunity to cancel or revise any order, change its plans, mitigate or remedy the effects or circumstances giving rise to a claim or take such other action as may seem desirable and to verify any claimed expenses or circumstances as they occur. Compliance with such provisions is essential whether or not the Fund is aware of the circumstances of any order or other circumstances which might constitute a basis for a claim and whether or not the Fund has indicated it will consider a claim in connection therewith. (3) The Contractor’s failure to submit and maintain a Time Progress Schedule in accordance with Section 3.02 of the Agreement shall be deemed to be a waiver by the Contractor of all claims for additional time, compensation or damages as a result of any condition which is an alleged cause of delay in the completion of the work. The Schedule of Record, regularly updated and submitted at required durations in accordance with the provisions of the General Requirements, Section paragraph titled “Project Schedule”: (i) informs the Fund and affords it promptly of regular opportunities to change its plans or mitigate or remedy the effects or circumstances giving rise to a claim of delay in the completion of the work or take such other action as may seem desirable to verify any claimed circumstances as they occur; and (ii) forms a record which becomes the basis of the Fund’s verification of an alleged cause of delay in the completion of the work. Version August 2023
(4) No person has power to waive or modify any of the foregoing provisions and, in any action against the Fund to recover any sum in excess of the sum certified by the Fund to be due under or by reason of the Contract, the Contractor must allege in its complaint and prove at the trial compliance with the provisions of this Section. (5) Nothing in this Section shall in any way affect the Fund's right to obtain an examination before trial or a discovery and inspection in any action that might be instituted by or against the Fund or the Contractor. Section 2.04 Omitted Work The Fund reserves the right at any time during the progress of the work to delete, modify or change the work covered by the Contract, by a Change Order or Field Order thereto providing for either a reduction or omission of any portion of the work, without constituting grounds for any claim by the Contractor for allowances for damages or for loss of anticipated profits and in such event a deduction shall be made from the Contract consideration, the amount of which is to be determined in accordance with the provisions of Section 4.02 or 4.05A of the Agreement. Section 2.05 Extra Work (1) The Fund reserves the right at any time during the progress of the work to add, modify or change the work covered by the Contract by Change Order or Field Order or as otherwise required by the Fund thereto providing for extra work of either a qualitative or quantitative nature and in such event the Contract consideration may be increased by an amount to be determined in accordance with the provisions of Sections 4.02 and 4.05A of the Agreement and the completion date for all or any part of the work may be extended for such period of time as may be determined by the Fund as necessary, because of the extra work, to complete the work or any part thereof. (2) Nothing in the Contract Documents shall excuse the Contractor from proceeding with the extra work as directed. The terms and conditions of the Contract Documents shall be fully applicable to all extra work. (3) The Contractor shall have no claim for extra work or an extension of time if the performance of such work, in the judgment of the Consultant, is made necessary or desirable because of any act or omission of the Contractor which is not in accordance with the Contract. Page A-6 (4) Notwithstanding the provisions of Section 2.02 of the Agreement and any other provisions of the Contract Documents to the contrary, an officer of the Fund, after conferring with the Consultant, shall have the right to overrule a determination or decision of the Consultant, that relates to whether certain work is included in the Contract Documents or is extra work, which he or she believes is incorrect; in the event an officer exercises such right, his or her determination or decision shall be final, conclusive and binding upon the Contractor and the Fund unless the same shall be determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary or so grossly erroneous as necessarily to imply bad faith. Section 2.06 Contractor to Give Personal Attention (1) The Contractor shall give its constant personal attention to all the work while it is in progress and shall place the work in charge of a competent and reliable full-time superintendent acceptable to the Consultant and the Fund who shall have authority to act for the Contractor and who shall be accountable to the Consultant to the extent provided in the Contract. Unless the superintendent proves to be unsatisfactory to the Contractor and ceases to be in its employ, such superintendent shall not be changed without the written permission of the Consultant and the Fund. (2) When the Contractor and its superintendent are temporarily absent from the site of the work, the Contractor or its superintendent shall designate a responsible supervisory employee, approved by the Consultant and the Fund, to receive such orders as the Consultant or its representative may give. At no time shall any work be conducted on the site in the absence of an individual present who has been so designated by the Contractor or its superintendent as having authority to receive and execute instructions given by the Consultant or its representative. (3) If the superintendent, project manager or other supervisory employees are not satisfactory to the Fund, the Contractor shall, if directed by the Fund, immediately replace such supervisory employees with other supervisory employees acceptable to the Consultant and the Fund. Such replacement and all related impacts shall be at no additional cost to the Fund. [Instructions: See Amendments for the applicability of this section.] (4) In addition to the superintendent required by 2.06(1) and (2), provide a full-time Project Manager who has ten (10) years’ experience as a Project Version August 2023
Manager with experience on three (3) other projects of similar size and scope. “Full-time” in the previous sentence is defined as being on the site of the work at any time work is being performed unless an absence is approved by the Consultant and the Fund. The Project Manager shall provide constant personal attention in managing the prosecution of all the work while it is in progress and shall respond to concerns expressed by the Consultant and the Fund in a responsible and reliable manner. The Project Manager shall not be obligated to perform any other work that is likely to impair his/her attention to the prosecution and completion of the work of this Contract. The Project Manager shall be acceptable to the Consultant and the Fund and shall not be replaced without written permission of the Consultant and the Fund unless the Project Manager proves to be unsatisfactory to the Contractor or ceases to be in its employ. The value of the Project Manager in the Contract Breakdown required in Section 4.08 of Article IV shall be fixed at 10,000 for each month, or portion thereof, prior to the substantial completion date specified on page A-1 of the Agreement. Section 2.07 Employment of Workers The Contractor shall at all times employ competent and suitable workers and equipment which shall be sufficient to prosecute all the work to full completion in a disciplined orderly manner and in accordance with the Time Progress Schedule and the contractually required time of performance. All workers engaged in special or skilled work shall have had sufficient experience in such work to properly and satisfactorily perform the same. Should the Consultant deem any employee of the Contractor or any subcontractor incompetent, careless, insubordinate or otherwise objectionable or whose continued employment on the work is deemed by the Consultant to be contrary to the public interest, it shall so advise the Contractor and the latter shall dismiss or shall cause the subcontractor, if such employee is employed by the latter, to dismiss such employee and such employee shall not again be employed on the work to be performed under the Contract without obtaining the prior written approval of the Consultant. Section 2.08 Detailed Drawings and Instructions Upon timely notice from the Contractor that supplementary information is required, the Consultant shall furnish additional instructions, by means of Drawings or otherwise, necessary for the proper execution of the work. All such Drawings and instructions shall be consistent with the Contract Page A-7 Documents, true developments thereof and reasonably inferable therefrom. The work shall be executed in conformity therewith and the Contractor shall do no work without proper Drawings and/or instructions. Section 2.09 Contract Documents to Be Kept at Site The Contractor shall keep at the site of the work a copy of the Drawings and Specifications and shall at all times give the Consultant and the Fund access thereto. Section 2.10 Permits and Building Codes The Contractor shall obtain from the proper authorities all permits legally required to carry on its work, pay any and all taxes and fees legally required and shall be responsible for conducting its operations in accordance with the provisions of such permits. Except as otherwise expressly provided in the Contract Documents, all of the work covered by this Contract which is to be performed on property owned by the State University of New York is not subject to the building code of any city, county or other political subdivision of the State of New York. It is, however, subject to the provisions of the Building Code of New York State and the applicable Federal and State health and labor laws and regulations. Section 2.11 Surveys (1) From the data shown on the Drawings and identified at the site by the Consultant, a licensed surveyor, to be designated and paid for by the Fund, shall establish one (1) fixed benchmark and one (1) fixed base line at the site. The Contractor shall work from the benchmarks and base lines shown on the Drawings, identified at the site by the Consultant and established at the site by the aforesaid surveyor and shall establish such supplementary bench marks and base lines that are required in order f
areas upon which the Contractor is to perform work. Substantial Substantial Completion is the completion . Completion of Work so that the Project can be fully occupied and used for the purposes for which it is intended. Substantial Completion includes: (1) completion of all work required for the issuance of a code compliance certificate, or a
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Through aligning campus priorities with vision and goals of EO166, SUNY's Clean Energy Master Plan, the CLCPA, and SUCF directive 1B-2, the actions to reduce energy usage, increase energy efficiency, and decrease operating costs include five strategic areas -
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